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In re McClendon

Court of Appeals of Arizona, First Division

December 7, 2017

In re the Matter of: CHARLES P. MCCLENDON, Petitioner/Appellee,
v.
SHERRI L. MCCLENDON, Respondent/Appellant.

         Appeal from the Superior Court in Maricopa County No. FN2006-002783 The Honorable Katherine M. Cooper, Judge

          DeSoto Law Firm, Phoenix By Rita E. DeSoto Co-Counsel for Petitioner/Appellee

          Jones, Skelton & Hochuli, P.L., Phoenix By Eileen Dennis GilBride (argued) Co-Counsel for Petitioner/Appellee

          Joe M. Romley, P.C., Phoenix By Joe M. Romley Counsel for Respondent/Appellant

          Presiding Judge Paul J. McMurdie delivered the opinion of the Court, in which Judge Peter B. Swann and Judge Patricia A. Orozco joined. [1]

          OPINION

          MCMURDIE, JUDGE:

         ¶1 Sherri L. McClendon ("Wife") appeals from a superior court order modifying Charles P. McClendon's ("Husband") spousal maintenance obligation. We reverse and remand for further proceedings, holding the superior court is to look at the latest court order in effect as the "decree respecting maintenance" under Arizona Revised Statutes ("A.R.S.") section 25-327 when determining if modification of spousal maintenance is warranted.

         FACTS AND PROCEDURAL BACKGROUND

         ¶2 In 2007, the parties entered a consent decree dissolving their 30-year marriage. Under the consent decree, Husband was to pay Wife spousal maintenance of $5500 per month until "further agreement of the parties or Court order." The parties also agreed that upon Husband's retirement from the Arizona State Retirement System ("ASRS"), Wife would receive her share of the retirement that accrued during the marriage.

         ¶3 In February 2014, Husband retired from his position as a city manager and relocated to California to manage another city beginning in March 2014. In February 2014, Husband petitioned to modify the spousal maintenance award because Wife had started to receive her share of the ASRS benefits, and she was now engaged in full-time employment. In August 2014, the parties entered into a binding Rule 69 agreement. Pursuant to the parties' 2014 agreement, reduced to an order that same year, Husband's spousal maintenance obligation to Wife was reduced from $5500 to $4000 per month (the "2014 Order"). Both the consent decree and 2014 order provided indefinite awards of spousal maintenance.

         ¶4 In 2016, Husband petitioned again to modify his spousal maintenance obligation. At the evidentiary hearing, Husband testified that Wife worked full time "a number of years prior to [2014], " as well as during the period between 2014 and 2016. Wife only worked part-time prior to the parties' divorce in 2007. After the 2014 Order, Wife's hourly wage increased by $0.89 per hour, resulting in a total monthly wage income of $2900. Husband further testified that Wife started receiving her share of ASRS benefits in the amount of approximately $3400 per month before the 2014 Order. Wife's ASRS distribution and full-time employment was at least part of the basis for the parties' agreement to modify Husband's spousal maintenance obligation in 2014. Husband's monthly wages as a city manager increased from $12, 700 in 2007 to almost $20, 000 after his employment in California. Husband also receives $5600 per month in retirement benefits from ASRS.

         ¶5 In its 2016 order, the court concluded the relevant time during which Husband's request for modification should be assessed was from the consent decree to present, and not from the 2014 Order to present. The court made A.R.S. § 25-319 findings and modified the spousal maintenance award from $4000 per month to $2000 per month. The court further ordered the decreased payment to terminate in 12 months. This appeal followed and we have jurisdiction pursuant to A.R.S. section 12-2101(A)(1) and (2).

         DISCUSSION

         ¶6 Wife argues the superior court erred by (1) finding a substantial and continuing change in circumstances sufficient to modify the 2014 Order; (2) limiting the indeterminate spousal maintenance award ...


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